Marlene Cook v. State

509 S.W.3d 591, 2016 Tex. App. LEXIS 12169, 2016 WL 6657381
CourtCourt of Appeals of Texas
DecidedNovember 10, 2016
DocketNO. 02-15-00319-CR
StatusPublished
Cited by7 cases

This text of 509 S.W.3d 591 (Marlene Cook v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marlene Cook v. State, 509 S.W.3d 591, 2016 Tex. App. LEXIS 12169, 2016 WL 6657381 (Tex. Ct. App. 2016).

Opinions

OPINION

TERRIE LIVINGSTON, CHIEF JUSTICE

Marlene Cook appeals from the trial court’s denial of her motion to suppress. We affirm.

Background

A City of Lewisville police officer arrested appellant without a warrant at her home after responding to 911 calls about a possible drunk driver and performing field sobriety tests on appellant in the parking lot in front of her building. Appellant’s blood was drawn after the arrest. The State filed a complaint and information alleging that appellant had committed the misdemeanor offense of driving while intoxicated and that she had a blood alcohol concentration of 0.15 or more. See Tex. Penal Code Ann. § 49.04(a), (d) (West Supp. 2016). Appellant filed a motion to suppress the blood evidence and any statements she made while in custody, in which she contended that she had been detained without reasonable suspicion and arrested without probable cause or a lawful warrant in violation of the Texas and United States Constitutions. After a hearing, at which she also objected that she was arrested in violation of article 14.03 of the code of criminal procedure, the trial court denied her motion to suppress. The trial court also filed findings of fact and conclusions of law in accordance with appellant’s request. Appellant then pled nolo contendere to the allegations in the information, the trial court found her guilty of the offense as alleged in the information, and the trial court assessed her punishment at 250 days’ confinement and a $500 fine. The trial court suspended her sentence and placed her on community supervision for fifteen months.

Motion to Suppress

In her first issue, appellant contends that the trial court erred by denying her motion to suppress because, under the totality of the circumstances, (1) there was no probable cause to arrest her and (2) officers did not find her in a suspicious place because there is no evidence of how much time had elapsed between when she arrived home and when she was arrested; therefore, her arrest was not authorized by article 14.03 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 14.03 (West 2015). In her second issue, appellant contends that the officers did not have reasonable suspicion under the Fourth Amendment and article I, section 9 of the Texas Constitution to detain her to perform an investigation.

Preservation

The court of criminal appeals has cautioned that our review of motions to suppress is subject to traditional error preservation principles. Hailey v. State, 87 S.W.3d 118, 121-22 (Tex. Crim. App. 2002), cert. denied, 538 U.S. 1060, 123 S.Ct. 2218, 155 L.Ed.2d 1111 (2003). Appellant’s written motion to suppress raised only constitutional grounds regarding lack of reasonable suspicion and probable cause. At the hearing on the motion, appellant additionally argued that article 14.03 did not authorize the warrantless arrest because no officer witnessed her committing an offense, the 911 callers’ observations could not be considered to be within the collective knowledge of the arresting officer, and there is no evidence of the amount of time that had elapsed between when she ar[595]*595rived home and when she was arrested. Because these were the only objections at trial related to the validity of the arrest under article 14.03—as well as appellant’s only arguments on appeal regarding article 14.03—these are the only potential grounds for reversal as to that statute. See id.

Applicable Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 965 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost total deference to a trial court’s rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo applicar tion-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court’s ruling, supports those fact findings. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). We then review the trial court’s legal ruling de novo unless its explicit fact findings that are supported by the record are also disposi-tive of the legal ruling. Id. at 818.

To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 558 U.S. 1093,130 S.Ct. 1015, 175 L.Ed.2d 622 (2009). A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the burden of proof shifts to the State, which is then required to-establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id. at 672-73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

Facts Adduced at Motion to Suppress Hearing

At the motion to suppress hearing, Christy Fitzgerald, a public safety dispatcher with the City of Lewisville, testified that around 9:45 p.m. on the evening of July 19, 2014, she received a 911 call regarding a possibly intoxicated driver. According to Fitzgerald, the caller identified herself, said the car at issue was a silver Hyundai, gave Fitzgerald a license plate number, and said the car had crossed over “about three lanes” and at some point struck a concrete wall. The caller j;old Fitzgerald that she had followed the driver of the Hyundai until the car “pulled into a garage at some homes ... located off Rock[b]rook.” The caller said the number on the garage was 87. Fitzgerald input this information into the dispatch call notes, and a different dispatcher “relayed the information to the officers.”

The trial court listened to the 911 call. The time; of the call is'recorded as 9:46 p.m. On the recording, the caller identified herself by first and last name, telephone number, and vehicle color and model. She said that .she watched a silver Hyundai travel over three lanes on westbound Highway 121 and that it almost hit a concrete barrier. The caller described the direction the Hyundai’s driver was traveling. As the caller was speaking to Fitzgerald, she exclaimed that the driver of the Hyundai had run into the center median of the [596]*596road on which they were traveling. At one point, Fitzgerald indicated that a different caller was also following the Hyundai and had said that it was pulling into some apartments.

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509 S.W.3d 591, 2016 Tex. App. LEXIS 12169, 2016 WL 6657381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marlene-cook-v-state-texapp-2016.